Learning moments – Interplay of exclusion orders, ARC applications, and the “inside Canada” versus “outside Canada” process for spousal sponsorship

From: IMEDA Immigration Education Alliance 
2021/04/21

Hello, fellow practitioners! In today’s column, we are dealing with the interplay of exclusion orders, Authorization to Return to Canada (‘ARC’) applications, and the “inside Canada” versus “outside Canada” processes for spousal sponsorships.

An out of status client submitted a spousal sponsorship application within Canada class under public policy A25(1) of IRPA. The sponsorship application was delivered to the CPC-Mississauga processing centre on March 16, 2021. However, the client received an exclusion order two days later on March 18, 2021.

There are limited circumstances in which an individual will be issued an exclusion order, as opposed to another type of removal order (i.e. departure order or deportation order). The circumstances in which an exclusion order will be issued are outlined in sections 228 and 229 of the Immigration and Refugee Protection Regulations.

An exclusion order can be issued against an individual for violations that are relatively minor (e.g. failing to leave Canada by the end of the period authorized for their stay), or for more serious violations or inadmissibilites (e.g. misrepresentation).

For the purposes of this column, I will assume that the exclusion order was issued for non-compliance, and not another type of inadmissibility. Inadmissibility is a separate issue that will need to be rectified, or overcome with humanitarian and compassionate considerations.

Assuming that lack of status is the only issue, the client has two choices. He can remain in Canada and hope that his removal order is not enforced prior to the processing of the pending Spouse or Common Law Partner in Canada Class (‘SCLPCC’) application, or he can leave Canada and re-submit a Family Class (‘FC’) application from outside Canada.

The first option is only possible because of the Public Policy Under A25(1) of IRPA to Facilitate Processing in accordance with the Regulations of the Spouse or Common-law Partner in Canada Class (‘Policy’), which exempts applicants from the requirement under R124(b) to be in status and the requirements under A21(1) and R72(1)(e)(i) to not be inadmissible due to a lack of status. I encourage readers to review the entire policy here.

The advantage of the first option is that there is a chance that the client will be able to remain in Canada with his family while his permanent resident application is in process. If the client is not removed before the SCLPCC application is processed, then he avoids the headache of having to submit another FC application from outside Canada and an ARC. The major disadvantage is that there is no guarantee that the exclusion order will not be enforced. While the CBSA is willing to grant individuals a 60-day administrative deferral of removal under the Policy, there is nothing preventing the CBSA from enforcing the exclusion order beyond those 60 days. If the exclusion order is enforced and the client leaves Canada, then he will have to essentially restart the process, submitting an application under the FC from outside Canada with a request for an ARC.

The advantage of the second option is that there is less uncertainty and there is no risk of having to restart the process after a lengthy wait. If the client leaves voluntarily, then he can commence the FC and ARC application right away. The client would not have to submit a separate ARC application. The ARC can be dealt with within the context of the FC application by including submissions on the client’s eligibility for an ARC, and the ARC application fee. The obvious downside of this option is that he will be separated from his Canadian wife and child during processing of the application.

It should be noted that merely meeting the eligibility requirements for the issuance of a visa is not sufficient to grant an ARC. The client must demonstrate that there are compelling reasons to consider an ARC when weighed against the circumstances that necessitated the issuance of the exclusion order. The fact that he is in a genuine marriage and has a Canadian child will be positive factors in this regard. The client must also demonstrate that he poses a minimal risk to Canadians and to Canadian society. His voluntarily departure will mitigate whatever circumstances led to the exclusion order.

Due to the fact that the client was issued an exclusion order (as opposed to a deportation order) for a reason other than misrepresentation, he will no longer require an ARC once one year passes from the date that his exclusion order was enforced. In all likelihood, the client’s FC application will take at least one year to process.

There is a small possibility that the FC application is processed before the one year period lapses, and that the ARC application is refused. In the event of a refusal, the client can decide whether he wants to reapply once the one year lapses, or appeal to the Immigration Appeal Division (‘IAD’), which has jurisdiction to overcome the inadmissibilitly underlying the ARC refusal on humanitarian and compassionate grounds.